The Affordable Care Act is "not the law of the land."
Rick Scott on Thursday, November 17th, 2011 in a meeting with the "Palm Beach Post" editorial board
Gov. Rick Scott says 'Obamacare' is 'not the law of the land'
Gov. Rick Scott, who has led Florida's opposition to the federal Affordable Care Act, offered justification for refusing millions of dollars in grants to implement the health care law: "It's not the law of the land."
His declaration to the Palm Beach Post editorial board on Nov. 17, 2011, prompted the paper to ask experts.
And we wondered: Is that true?
The Affordable Care Act, signed into law by President Barack Obama in 2010, faces review by the U.S. Supreme Court after federal judges offered different opinions about whether some parts of the law violate the U.S. Constitution. That will stretch into next year.
Meanwhile, most states are working to implement the law, which takes effect in stages through January 2015. But not Florida.
Florida refused grants to roll out the complex 10-part statute when a Florida district court judge ruled it unconstitutional in January 2011, even though the same judge said the law should continue to be implemented as long as his ruling was quickly appealed (which it was).
Scott's administration has turned away grants applied for under Gov. Charlie Crist, such as $2 million for Medicare outreach, $500,000 for an elder affairs counseling and assistance program, $1 million to help consumers monitor health care premiums in the state and $1 million to plan a health care exchange, according to the Governor's Office. Then it turned away larger sums, such as the first installment of more than $30 million to help keep disabled seniors out of nursing homes. Just how much has it turned away? The Governor's Office doesn't keep a tally, spokesman Lane Wright said.
What Scott said
We asked for an audio recording of Scott's discussion with the Palm Beach Post editorial board. Here's how that part of the conversation unfolded:
Randy Schultz, the paper's editorial page editor, noted that Florida had not worked to implement Obama's health care law, then asked: "Will you implement the law if the Supreme Court upholds all or part of it?"
Scott replied: "If it's the law of the land, we'll be ready."
Post editorial writer Rhonda Swan commented that the state has rejected millions in federal grants designed to help the state prepare. So, she asked, how would the governor pay for implementation?
"It's my job, if it's the law of the country, to be ready when it's the law," Scott said. "... When it's the law of the land, we'll implement the law."
"Where will you find the money?" Swan asked.
"It'll be part of our budget," Scott said.
Swan continued to press, finally asking: "Why not take the money that the federal government is offering now so you can be prepared?"
"Because it's not the law of the land," Scott said. "I don't believe it'll ever become the law of the land."
While some judges have found the law to be unconstitutional, none has told states to stop implementing it.
"This is the law -- it's been passed by both houses of Congress and signed by the president," Jost said.
That's also the position of the U.S. Department of Heath and Human Services.
"Legal challenges are nothing new, but they don't change the status of a law," said spokeswoman Erin Shields.
So, what did the governor mean?
Spokesman Lane Wright said that beyond constitutional questions about the health care law, its most significant and expensive provisions don't take effect until 2014. Those include an expansion of Medicaid, the mandate that individuals purchase health insurance and a requirement for states to set up health insurance exchanges to make coverage available to people who don't get it through their employers.
"None of those are in effect right now and, hence, are not the law of the land," Wright said.
Of course, many provisions of the law are in effect. There's already a 50 percent discount for name-brand drugs in the Medicare "doughnut hole." Young adults can get insurance coverage through their parents. Insurance companies can't go back and search for a technical error on an application to deny payment for services once someone gets sick. Small businesses qualify for tax credits to help them provide health benefits to workers. New insurance plans must offer free preventive care. That's just a partial list of elements of the law in effect last year.
Meanwhile, does the governor really mean to argue that he's turning away money to prepare for provisions of the law to go into effect because they haven't yet gone into effect?
Randy Barnett, a Georgetown law professor involved in the Supreme Court challenge to the health care law, offered another interpretation of Scott's statement.
The governor took an oath to support the Constitution. So he might take the stance that the law, "though properly enacted, is contrary to the Constitution and therefore not a valid and binding law," Barnett said.
So Jost -- a law professor who considers the health care law constitutional -- finds Scott's statement "ridiculous." But Barnett -- who considers it unconstitutional -- suggests Scott has a point.
Does one represent the settled legal view?
We asked Laurence Tribe, a Harvard law professor who has argued 35 cases before the U.S. Supreme Court. (He's also publicly debated the constitutionality of the health care law and worked as an adviser to the Justice Department at the time the law passed.)
"Of course the Affordable Care Act is the 'law of the land,' " he said. "It is completely settled that, although public officials and citizens generally are entitled to have and to express their own opinions that a duly enacted federal statute like the Affordable Care Act violates the Constitution, unless and until the United States Supreme Court upholds that view, the rule of law requires that the Affordable Care Act be enforced unless repealed. ...
"We would not have a functioning system of government if officials could take the law into their own hands whenever they held the view that Congress had exceeded its authority."
Scott said he's refusing federal grant money to implement the Affordable Care Act in Florida "because it's not the law of the land."